Finch v. Commissioners of Nash County

• Decision Date: 23 September 1925
• Docket Number: 70.
• Parties: FINCH ET AL. v. COMMISSIONERS OF NASH COUNTY ET AL.
• Court: North Carolina Supreme Court

129 S.E. 195

190 N.C. 154

FINCH ET AL. v. COMMISSIONERS OF NASH COUNTY ET AL.

No. 70.

Supreme Court of North Carolina

September 23, 1925

Action by S.E. Finch and others against the Commissioners of Nash County and others. From a judgment for defendants, plaintiffs appeal. Motion by plaintiffs for certiorari to have case brought up and heard on appeal. Motion denied.

Trial court cannot abrogate Supreme Court rules in extending time for appeal.

Josiah W. Bailey, of Raleigh, and O. B. Moss, of Spring Hope, for plaintiffs.

STACY C.J.

It appears from an inspection of the record now before the court that the plaintiffs instituted this action on July 1, 1925 to enjoin the board of education of Nash county from consolidating certain school districts, and, further, to restrain the board of commissioners of said county from levying taxes in the proposed consolidated territory or districts. There was a preliminary restraining order issued in the cause, returnable before Judge M. V. Barnhill at Rocky Mount on July 10, 1925. Upon the hearing before Judge Barnhill the temporary restraining order was dissolved and the action dismissed, it appearing that injunctive relief was the primary and only remedy sought by plaintiffs. To this judgment, the plaintiffs excepted and gave notice of appeal to the Supreme Court. By consent, plaintiffs were allowed 60 days within which to prepare and serve statement of case on appeal, and the defendants were allowed 30 days thereafter to file exceptions or counterstatement of case. This application for certiorari was made on September 1, 1925, for the reason that "the case on appeal has not been served or made up and therefore the record is not in condition for hearing at this term of the Supreme Court."

Under our settled rules of procedure, an appeal from a judgment rendered prior to the commencement of a term of the Supreme Court must be brought to the next succeeding term, and, to provide for a hearing in regular order, it is required that the same shall be docketed here seven days (14 after January 1, 1926), before entering upon the call of the docket of the district to which it belongs, with the proviso that appeals in civil cases from the First, Second, Third, and Fourth districts, tried between the 1st day of January and the first Monday in February, or between the 1st day of August and the fourth Monday in August, are not required to be docketed at the immediately succeeding term of this court, though, if docketed in time for hearing at said first term, the appeal will stand regularly for argument. Rule 5, vol. 185, p. 788 as amended, vol. 189, p. 843. In numerous decisions of the court dealing directly with the subject, it has been held that these rules governing appeals are mandatory and not directory. Walker v. Scott, 102 N.C. 490, 9 S.E. 488. The only modification sanctioned by the decisions is that where, from lack of sufficient time or other cogent reason, the case is not ready for hearing, it is permissible for the appellant, within the time prescribed, to docket the record proper and move for certiorari, which motion may be allowed by the court, in its discretion, on sufficient showing made, but such writ is not one to which the moving party is entitled as a matter of right. State v. Farmer, 188 N.C. 243, 124 S.E. 562; State v. Johnson, 183 N.C. 730, 110 S.E. 782.

It is urged on behalf of movants that the writ should issue in the instant case, because the trial judge, under authority of C S. § 643, as amended by chapter 97, Public Laws 1921, approved the agreement of counsel that the time for serving statement of case on appeal and exceptions thereto, or counterstatement of case, should be extended, and that the time so extended has not yet expired. True, the discretionary power to enlarge the time for preparing and serving statement of case on appeal and exceptions thereto, or counterstatement of case, is lodged in the trial court by virtue of the statute above mentioned (State v. Humphrey, 186 N.C. 533, 120 S.E. 85); but this gives him no more authority to abrogate the rules of the Supreme Court than litigants or counsel would have to impinge upon them by...